Functioning of the Election Commission – Explained, pointwise

Introduction

Recently, a letter written by the Law Ministry to the Election Commission (EC) on November 15, has come under criticism regarding the independent functioning of the Election Commission. The letter states that the Principal Secretary to the PM ‘expects‘ the Chief Election Commissioner (CEC) and two Election Commissioners to be present during a discussion. An official communication from the Law Ministry said that the meeting had been called to discuss electoral reforms, and it is an “informal interaction”.

The Chief Election Commissioner and two Election Commissioners, despite expressing reservations, joined an online “interaction” called by the Prime Minister’s Office (PMO). This raised concerns over the independent functioning of the commission, especially when elections to crucial states are around the corner.

What is the role of Election Commission?

It is a permanent and independent body established by the Constitution of India to ensure free and fair elections in the country. Article 324 of the Constitution provides that the power of superintendence, direction, and control of elections shall be vested in the Election Commission.

This includes 1. Conducting elections to the Parliament, State Legislatures, the Office of President of India, and the Office of Vice-President of India, 2. It grants election symbols and also recognizes political parties, 3. It issues a  model code of conduct and keeps an eye on the election expenditure of candidates.

Why the summoning is not a cause of concern?

To bring reforms in the electoral process, discussions are needed between Election Commission and the central government before a final proposal is brought to Parliament. As long as the meeting is not held to discuss any subject relating to the conduct of elections, there is no wrongdoing in the Election Commission meeting with government officials.

Moreover, the independence of any functionary is defined by the conduct and integrity of the institution. Merely meeting the executives does not compromise the independence of anybody.

Why the summoning is a cause of concern?

Summoning is a violation of the Constitution: 1. The PMO is summoning or “inviting” not just the CEC, but the full bench of the Election Commission, an autonomous constitutional body, is in violation of the Constitution, irrespective of how important or urgent the issue is. 2. The CEC is very high in the warrant of precedence (9th), while the PS to PM is 23rd. So, summoning a high constitutional functionary to attend a meeting is in violation of the spirit of the Constitution.

Compromises the independent image of the EC: The Election Commission is a Constitutional authority whose functioning is insulated from the Executive, just like the Supreme Court.  Free, fair and credible elections are sine qua non of the EC. Attending meetings or discussions called by officers of the government compromises the independence of the commission in the public eye.

The tone of the letter also raises questions because as per protocol, an officer of the government, no matter how senior, cannot call the CEC for a discussion.

What are the other concerns raised about the functioning of the Election Commission at present?

About 66 former bureaucrats, in a letter to the President, raised concerns about the functioning of the Election Commission. They raised several issues like:

-In the 2019 Lok Sabha elections, the election commission had given a clean chit to the Prime Minister for making a reference to a process during an election rally. This also went contrary to the opinion expressed by the District Election Officer.

-Commissions’ belated decision to ban election campaigns in midst of the Covid pandemic.

Further, the Madras High court accused EC of spreading the 2nd wave of pandemic and stated that its officers should be booked for murder charges. A similar opinion was held by Media also.

Apart from that,

-There have been allegations of EVMs malfunctioning and not registering votes.

-The EC is also not able to contain money power and muscle power in Elections. Today, those who come to Parliament and Legislatures are mostly moneyed candidates.

What are the challenges associated with the functioning of the Election Commission?

Selection Procedure: The Chief Election Commissioner and other ECs are appointed by the President on recommendations of the central government. This raises the question of the partisan behaviour of officials towards the ruling party.

Security of Tenure: CEC enjoys a secure tenure like an SC judge. However, the other two ECs can be easily removed by the President on the recommendation of the CEC.

Post Retirement Jobs: The Constitution has not debarred the retiring election commissioners from any further appointment by the government. The government uses this loophole for compromising the independence of members.

Lack of powers hindering independent functioning: It has no power to derecognize a political party or control the extent of party expenditure. Further, the model code of conduct is not legally enforceable.

Inadequate Political Will: In the last 70 years numerous political leaders and parties became part of the government. However, very few were willing and able to bestow sufficient powers to EC for ensuring independent functioning.

What should be done to improve the functioning of the Election Commission?

With respect to meetings

According to T.S. Krishnamurthy, a former CEC, the CEC and other Election Commissioners should refrain from attending any meeting convened by any official or Minister as it lowers public confidence in the Election Commission as a fair and neutral arbiter of elections.

According to S.Y. Quraishi, a former CEC, instead of inviting CEC to the PMO, the Principal Secretary or the Law Minister should visit the Election Commission and discuss the matters. Further, such a meeting should be considered as a public event, not an informal one.

With respect to other functions

The EC must be appointed by a collegium as recommended by the Second Administrative Reforms Commission. It should comprise the Prime Minister, Speaker of the Lok Sabha, the Leader of Opposition in the Lok Sabha, the Law Minister, and the Deputy Chairman of the Rajya Sabha.

The government should expeditiously accept the 50 reform recommendations sent by the EC. These include 1. Rules on decriminalizing politics, transparent party funding, paid news, 2. Empowering the EC to countermand an election in cases of bribery, etc.

There must be a prudent cooling-off period for election commissioners post-retirement.

The expenditure of EC should be charged upon the Consolidated Fund of India similar to other constitutional bodies such as the UPSC.

The Election Commission and CEC should refrain from any political or official or Ministerial meeting to ensure their non-partisan behaviour. This will not only ensure free and fair elections, but also enhance people’s trust and the organisation’s credibility.